[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 5, 2008
No. 07-11011 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20319-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEIGH JESSE QUINTO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 5, 2008)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Leigh Jesse Quinto, proceeding pro se, appeals his conviction and 240-
month sentence for distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). First, Quinto argues that the district court lacked subject matter
jurisdiction over his offense of conviction, asserting that the offenses codified in
Title 21 of the United States Code do not constitute federal crimes “cognizable by
[the district court] pursuant to Title 18.” Quinto also contends that his Fifth
Amendment grand jury right was violated, asserting that the evidence presented to
the grand jury was falsified, and notes that his requests for grand jury materials to
support this claim were denied. Second, Quinto argues that his 240-month
sentence was both procedurally and substantively unreasonable.1 Quinto asserts
that the district court incorrectly calculated his advisory sentencing range as if he
had been convicted of conspiracy, and failed to consider the sentencing factors
enumerated in 18 U.S.C. § 3553(a) in fashioning his sentence. Last, Quinto argues
that he was denied his Sixth Amendment right to effective assistance of counsel,
asserting that his trial counsel made numerous mistakes and had a personal conflict
of interest because counsel’s son died of a drug overdose.
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We decline to address Quinto’s remaining argument concerning the accuracy of the
district court’s order of judgment and conviction, which is without merit. Additionally, we
decline to address Quinto’s argument that the district court erred by sentencing him as a career
offender absent a notice of prior convictions under 21 U.S.C. § 851 , which was raised for the first
time in his reply brief. See United States v. Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006).
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For the reasons set forth more fully below, we affirm Quinto’s conviction
and sentence.
I.
A. District Court Subject Matter Jurisdiction
We will examine a district court’s jurisdiction over an action even when the
district court does not address those jurisdictional issues. See United States v.
Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998) (per curiam) (acknowledging
that “a party may raise jurisdiction at any time during the pendency of the
proceedings”). We review questions of subject matter jurisdiction de novo. Id.
Generally, a motion alleging a defect in the indictment must be made before trial,
unless the alleged defect is a failure to invoke the district court’s jurisdiction or to
state an offense. Fed.R.Crim.P. 12(b)(3)(B).
“Congress has provided the district courts with jurisdiction . . . of ‘all
offenses against the laws of the United States.’” Alikhani v. United States, 200
F.3d 732, 734 (11th Cir. 2000) (per curiam) (quoting 18 U.S.C. § 3231). Where an
indictment charges a defendant with violating the laws of the United States, § 3231
provides the district court with subject matter jurisdiction and empowers it to enter
judgment on the indictment. Id. at 734-35.
Quinto’s claim that the district court lacked jurisdiction to adjudicate the
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charged drug offenses is without merit. The indictment charged Quinto and his
codefendants with violations of the laws of the United States: 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(A)(ii), and (b)(1)(C). This invoked the district court’s subject
matter jurisdiction under 18 U.S.C. § 3231. Alikhani, 200 F.3d at 734-35.
Accordingly, we affirm Quinto’s conviction in this respect.
B. Grand Jury Proceedings and Motion for Disclosure of Grand Jury
Materials
We review a district court’s order regarding the disclosure of grand jury
transcripts for an abuse of discretion, keeping in mind that “the district court has
substantial discretion in determining whether grand jury materials should be
released.” United States v. Aisenberg, 358 F.3d 1327, 1338, 1349 (11th Cir. 2004)
(quotation omitted). “It has long been a policy of the law that grand jury
proceedings be kept secret.” Id. at 1346-47. This secrecy principle is codified
under Fed.R.Crim.P. 6(e)(2), which prohibits the disclosure of grand jury material
except in the limited circumstances described in Rule 6(e)(3). Id. at 1347. The
portion of that provision at issue is:
The court may authorize disclosure--at a time, in a manner, and
subject to any other conditions that it directs--of a grand-jury matter:
(i) preliminarily to or in connection with a judicial proceeding;
(ii) at the request of a defendant who shows that a ground may
exist to dismiss the indictment because of a matter that occurred
before the grand jury.
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Fed.R.Crim.P. 6(e)(3)(E)(I) and (ii).
The Supreme Court has held that the Rule 6(e) exceptions apply only when a
party seeking disclosure of grand jury material shows a “particularized need” for
that material. See Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222,
99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979). The Supreme Court explained that a
party meets this standard when he shows “that the material [he] seek[s] is needed
to avoid a possible injustice in another judicial proceeding, that the need for
disclosure is greater than the need for continued secrecy, and that [his] request is
structured to cover only material so needed.” Id. The Supreme Court stated that
“[s]uch a showing must be made even when the grand jury whose transcripts are
sought has concluded its operations.” Id. We have explained that a party meets
the particularized need standard when he shows that “circumstances had created
certain difficulties peculiar to this case, which could be alleviated by access to
specific grand jury material, without doing disproportionate harm to the salutary
purpose of secrecy embodied in the grand jury process.” Aisenberg, 358 F.3d at
1348-49.
Here, Quinto appears to challenge the district court’s denial of his Rule 6(e)
motions for disclosure of grand jury materials based on the contention that those
materials support his claims that evidence presented to the grand jury concerning
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the drug quantity attributable to his conduct was falsified, and that improper
procedures were used to obtain his indictment. Quinto’s general requests for grand
jury materials, however, did not establish the requisite particularized need to merit
disclosure under Rule 6(e). See Douglas Oil Co. of Cal., 441 U.S. at 222, 99 S.Ct.
at 1674. Specifically, Quinto failed to describe any “difficulties peculiar to [his]
case” that merited disclosure, instead presenting unsubstantiated allegations that
the evidence presented before the grand jury was falsified. See Aisenberg, 358
F.3d at 1348-49. We have held that unsubstantiated allegations do not satisfy the
“particularized need” standard. United States v. Cole, 755 F.2d 748, 759 (11th Cir.
1985). Accordingly, because Quinto did not show that he had a particularized need
for the material sought, the district court did not abuse its discretion in denying his
motions. See Aisenberg, 358 F.3d at 1338, 1349. We therefore affirm Quinto’s
conviction in this respect.
II.
We review the final sentence imposed by the district court for
reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).
Unreasonableness may be procedural, when the court’s procedure does not follow
the requirements set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,
160 L.Ed.2d 621 (2005), or substantive. See Gall v. United States, ___ U.S. ___,
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128 S.Ct. 586, 597, ___ L.Ed.2d ___ (2007); United States v. Hunt, 459 F.3d 1180,
1182 n.3 (11th Cir. 2006). The Supreme Court has explained that a sentence may
be procedurally unreasonable if the district court improperly calculates the
guideline imprisonment range, treats the Guidelines as mandatory, fails to consider
the appropriate statutory factors, bases the sentence on clearly erroneous facts, or
fails to adequately explain its reasoning. Gall, ___ U.S. at ___, 128 S.Ct. at 597.
The Court also has explained that the substantive reasonableness of a sentence is
reviewed under an abuse-of-discretion standard. Id. It has suggested that review
for substantive reasonableness under this standard involves inquiring whether the
factors in 18 U.S.C. § 3553(a) support the sentence in question. Id. at ___, 128
S.Ct. at 600.
When imposing a sentence, the district court must first correctly calculate
the Guidelines. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Second, the district court must consider the following factors to determine a
reasonable sentence:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
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avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. (citing 18 U.S.C. § 3553(a)). While the district court must consider the
§ 3553(a) factors, it is not required to discuss each factor. Id. Instead, we have
held that an explicit acknowledgment that the district court has considered the
defendant’s arguments and the § 3553(a) factors will suffice. United States v.
Scott, 426 F.3d 1324, 1329-30 (11th Cir. 2005); see also Rita v. United States, 551
U.S. __, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007) (holding that the
defendant’s sentence was reasonable when the district court considered the parties’
arguments and provided a reasoned basis for its choice of sentence).
“[T]here is a range of reasonable sentences from which the district court may
choose” and the burden of establishing that the sentence is unreasonable in light of
the record and the § 3553(a) factors lies with the party challenging the sentence.
Talley, 431 F.3d at 788. We have held that a sentence within the guidelines range
is neither per se reasonable, nor entitled to a presumption of reasonableness. See
id. at 786-88; Hunt, 459 F.3d at 1185. However, the Supreme Court has held that,
in reviewing sentences for reasonableness under 18 U.S.C. § 3553(a), a federal
appellate court may apply a presumption of reasonableness to a district court
sentence imposed within the guideline range. Rita, 551 U.S. at ___, 127 S.Ct. at
2462. Nevertheless, it appears that, even in light of Rita, our previous holdings
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remain intact. United States v. Campbell, 491 F.3d 1306, 1313-14 n.8 (11th Cir.
2007) (restating our holding in Hunt, but noting that “the [Supreme] Court’s
rationale in Rita calls into question our reasons for not affording a presumption of
reasonableness”).
“When the appealing party does not clearly state the grounds for an
objection in the district court, we are limited to reviewing for plain error.” United
States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Under plain error review,
“[a]n appellate court may not correct an error the defendant failed to raise in the
district court unless there is (1) error, (2) that is plain, and (3) that affects
substantial rights. If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.”
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citations and
quotations omitted).
With regard to the procedural reasonableness of Quinto’s sentence, the
district court did not plainly err in its sentencing procedure. The record indicates
that the district court correctly calculated the advisory guideline range based on the
conduct related to Quinto’s offense of conviction, and his status as a career
offender. The record reflects that Quinto was at least 18 years old at the time of
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the instant offense and had at least 2 prior felony controlled substance convictions,
which qualified him as a career offender pursuant to U.S.S.G. § 4B1.1, resulting in
an advisory guideline range of 210 to 240 months’ imprisonment based on an
offense level of 32 and a criminal history category of VI. Quinto did not challenge
the validity of any of these convictions at sentencing, and did not object to the
district court’s finding that he qualified as a career offender. The record further
demonstrates that the district court expressly stated that it considered the
sentencing factors set forth in § 3553(a), specifically, Quinto’s personal history and
characteristics, and the need to promote respect for the law. The district court
further considered the parties’ arguments concerning the sentence to be imposed
based on the § 3553(a) factors, and sufficiently explained its reasons for imposing
the sentence. Accordingly, because Quinto failed to satisfy the first prong of the
plain error analysis, we do not address the remaining prongs, and affirm his
sentence in this respect.
Quinto also has not established that his sentence is substantively
unreasonable. See Gall, ___ U.S. at ___, 128 S.Ct. at 597; Hunt, 459 F.3d at 1182
n.3. Quinto’s sentence of 240 months’ imprisonment is within the advisory
guideline range. Moreover, the record indicates that the district court considered
Quinto’s extensive criminal history and the need to promote respect for the law in
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determining that a Guidelines sentence was appropriate. Therefore, the § 3553(a)
factors supported the district court’s sentence, and the district court did not abuse
its discretion. See Gall, ___ U.S. at ___, 128 S.Ct. at 597, 601-02. Accordingly,
Quinto’s sentence is reasonable, and we affirm as to this issue.
III.
We generally do not consider claims of ineffective assistance of counsel for
the first time on direct appeal unless the record is sufficiently developed as to that
issue. United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2000); see also
Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694, 155 L.Ed.2d
714 (2003). We will, however, consider an ineffective-assistance claim on direct
appeal “if the record is sufficiently developed.” United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002). Additionally, the Supreme Court has articulated that,
while “[t]here may be cases in which trial counsel’s ineffectiveness is so apparent
from the record that appellate counsel will consider it advisable to raise the issue
on direct appeal,” generally, these claims are best raised in a 28 U.S.C. § 2255
motion. Massaro, 538 U.S. at 504-09, 123 S.Ct. at 1694-96. The Court reasoned
that the evidence introduced at trial is devoted to guilt or innocence, and, therefore,
the record on direct appeal will not disclose many of the facts necessary to make a
determination regarding the effectiveness of counsel. Id. at 504-06, 123 S.Ct. at
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1694-95. Further, the Court noted that there is no way to determine, based solely
on the trial record, whether counsel’s actions or omissions were the result of trial
strategy, as testimony from counsel is usually necessary. Id.
In this case, Quinto did not raise the ineffective assistance issue below.
Therefore, the district court did not have an opportunity to develop a factual record
for consideration by this Court. See Tyndale, 209 F.3d at 1294; see also Massaro,
538 U.S. at 504-06, 123 S.Ct. at 1694-95. Moreover, even if the record were
sufficiently developed, Quinto did not provide any analysis, citations to the record,
or citations to any legal authority in his argument before us. Accordingly, we
decline to address this issue.
In light of the foregoing, Quinto’s conviction and sentence are
AFFIRMED.
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